Not For Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 04-2286

ROBENSON SEIDE,

Petitioner,

v.

ALBERTO R. GONZALES, ATTORNEY GENERAL,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF

THE BOARD OF IMMIGRATION APPEALS

Before

 Lipez, Circuit Judge,

Stahl, Senior Circuit Judge,

and Howard, Circuit Judge.

Harvey J. Bazile, with whom Bazile & Associates, were on

brief, for petitioner.

Linda S. Wernery, Attorney, Office of Immigration Litigation,

Civil Division, with whom Peter D. Keisler, Assistant Attorney

General, Civil Division, Dennis J. Dimsey, Attorney, and

Christopher C. Wang, Attorney, Office of Immigration Litigation,

were on brief, for respondent.

June 30, 2005
1The CAT's full name is the United Nations Convention Against

Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or

Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85. Article 3 of the CAT

was implemented in the United States by the Foreign Affairs Reform

and Restructuring Act of 1998, Pub. L. No. 105-277, § 2242, 112

Stat. 2681, 2681-822 (codified at 8 U.S.C. § 1231).

2Seide's other sister lived in the United States.

3The Homeland Security Act of 2002, Pub. L. No. 107-296, §

471, 116 Stat. 2135, 2205 (codified as amended at 6 U.S.C. §

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STAHL, Senior Circuit Judge. Petitioner Robenson Seide

("Seide") seeks review of a decision of the Board of Immigration

Appeals ("BIA") affirming a denial of his application for asylum,

withholding of removal, and relief under Article 3 of the

Convention Against Torture ("CAT").1 Finding no error, we affirm.

I. Background

Seide is a native and citizen of Haiti. On August 25,

2001, he attempted, albeit unsuccessfully, to use a United States

passport that originally had been issued to another person to enter

the United States. Prior to seeking entry into the United States,

Seide lived in Port-au-Prince, Haiti with his wife, whom he married

in January 2001 and who still lives in Port-au-Prince. Seide was

born and grew up in Cavaillon, Haiti with his parents, two sisters,

and a brother. By August 2001, his parents and one sister lived in

St. Martin and his brother lived in the Dominican Republic.2

In September 2001, the United States Immigration and

Naturalization Service ("INS") initiated removal proceedings

against Seide.3 At his removal hearing before an Immigration Judge
291(a)), abolished the INS as an independent agency and transferred

many of its duties to a bureau of the Department of Homeland

Security.

4The following account is derived from Seide's removal hearing

testimony and from his affidavit in support of his application for

relief from removal.

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("IJ"), Seide conceded removability but applied for relief in the

form of asylum, withholding of removal, and relief under the CAT.

During the hearing, Seide testified that he came to the

United States to escape adverse treatment that he faced as a result

of his political activities.4 He claimed that he became involved

in politics in Haiti in 1999 when he joined Rassemblement des

Citoyens Patriotes ("RCP"), an organization devoted to pursuing

social and political reform in Haiti. He also said that he was a

member of Organisation des Militants Kavayone ("ODMK"), a group

that sought to bring about reform in Cavaillon. Seide routinely

traveled from his home in Port-au-Prince to Cavaillon.

Seide maintained that due to his reformist activities, he

began to experience adverse treatment in May 2000. He recounted

that on May 22, 2000, he was in the headquarters of RCP when the

building was shot at and invaded by supporters of the Lavalas

Party, Haiti's ruling political party. Seide averred that the

intruders killed one member of RCP, wounded fifteen to twenty

others, and stole documents that contained names and addresses of

RCP members.
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Seide further testified that on July 14, 2000, four men

wearing shirts bearing the logo of the Lavalas Party broke into his

home while he was out, asked his servant for him by name, and

stole, among other things, his passport. The intruders allegedly

promised to return when he was in residence. Approximately two

weeks later, Seide obtained a replacement passport. After the

break-in, Seide vacated his home and, for several months, stayed

with friends and family in various locations within Port-au-Prince.

Then, in January 2001, he married and reestablished a permanent

home with his wife in Port-au-Prince. Throughout this time, Seide

continued to travel between and conduct political activities in

Port-au-Prince and Cavaillon.

Next, Seide claimed that on November 25, 2000, he was

attending mass in a church near Cavaillon with members of ODMK when

a group of men brandishing firearms entered the church and ordered

everyone inside to the ground. The mayor of Cavaillon, a member of

the Lavalas Party, was allegedly among the intruders. Seide stated

that he was physically attacked (though he did not require medical

treatment) and ordered to cease his political activities.

Seide further insisted that two months later, in January

2001, the coordinator of ODMK was arrested and held in custody for

a little over two weeks without being formally charged of a crime.

The coordinator allegedly died soon after his release due to
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injuries he sustained while in custody. Seide acknowledged that

while living in Haiti, he was never similarly detained.

Seide also recounted that on August 4, 2001, while

driving a relative's car (a car he had previously driven on only a

few occasions), he was followed and shot at by individuals in

another car. He asserted that he managed to escape on foot after

losing control of the car. Seide could not identify his attackers.

Moreover, although he indicated in his written affidavit that, as

he ran away, his attackers yelled political epithets at him, he did

not include this detail in his testimony before the IJ.

After considering all of the above, the IJ concluded that

Seide had failed to establish an entitlement to the relief that he

sought. She refused his request for asylum, finding that he did

not have a well-founded fear of future persecution in Haiti on

account of his political beliefs and that he had not established

that his departure from Haiti was caused by any prior politicallymotivated incidents. As to the August 2001 attack, the IJ found it

significant that Seide was driving a borrowed car, could not

identify his attackers, and did not testify that his attackers

yelled political epithets at him. She concluded that there was

insufficient evidence that he was the intended target of a

politically-motivated attack and that, given the circumstances, he

could not reasonably have viewed himself as the intended target of

such an attack. Further, she noted that the most recent of the
5The IJ also found it significant that Seide applied for and

received a replacement passport immediately after the home

invasion; at all relevant times, he traveled between and engaged in

political activities in Port-au-Prince and Cavaillon; from January

to August 2001, he lived without incident with his wife in a

permanent home in Port-au-Prince; and he used another person's

passport to try to enter the United States rather than using his

own passport to legally gain access to St. Martin (where his

parents and one sister lived) or the Dominican Republic (where his

brother lived).

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other incidents occurred nine months before he left Haiti.5 From

this, she reasoned that Seide did not have a well-founded fear of

future persecution and that his attempt to enter the United States

was not "on account of threats . . . or mistreatment that he

received [due to] his political activities"; it was "a matter of

choice and not necessity."

The IJ then denied Seide's request for withholding of

removal because she found that he had "failed to establish a clear

probability of persecution" on account of his political beliefs if

he were returned to Haiti. Finally, she determined that Seide had

not shown that "the authorities would . . . subject him to torture"

if he were to return to Haiti, and thus, she denied his request for

relief under the CAT.

Seide appealed the IJ's decision to the BIA. After the

BIA adopted and affirmed the IJ's ruling, Seide filed this timely

appeal.
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II. Discussion

We uphold decisions of the BIA if they are "supported by

reasonable, substantial, and probative evidence on the record

considered as a whole." INS v. Elias-Zacarias, 502 U.S. 478, 481

(1992) (internal quotation marks omitted). This standard applies

to claims for asylum, withholding of removal, and relief under the

CAT. Settenda v. Ashcroft, 377 F.3d 89, 93 (1st Cir. 2004). "We

will reverse only if the petitioner's evidence would compel a

reasonable factfinder to conclude that relief was warranted." Id.

Ordinarily, we review decisions of the BIA, and not those

of an IJ. See Njenga v. Ashcroft, 386 F.3d 335, 338 (1st Cir.

2004). But, if, as in this case, the BIA has adopted the opinion

of an IJ, then we must look to that decision instead and "treat the

findings and conclusion of the IJ as the [BIA's] own opinion."

Herbert v. Ashcroft, 325 F.3d 68, 71 (1st Cir. 2003).

A. Asylum

An asylum applicant bears the burden of proving that he

"is unable or unwilling to return to [his country of nationality]

. . . because of [past] persecution or a well-founded fear of

[future] persecution on account of . . . political opinion." 8

U.S.C. § 1101(a)(42)(A); see 8 C.F.R. § 208.13(a). A showing of

past persecution entitles the applicant to a rebuttable presumption

of a well-founded fear of future persecution. See Mukamusoni v.

Ashcroft, 390 F.3d 110, 119 (1st Cir. 2004). To carry his burden,
6To show past persecution, Seide had to provide "conclusive

evidence" that he was targeted because of his political opinions.

Ali v. Gonzales, 401 F.3d 11, 15 (1st Cir. 2005). And, to show a

well-founded fear of future persecution, he had to establish that

his "fear [was] both genuine and objectively reasonable." AguilarSolis v. INS, 168 F.3d 565, 572 (1st Cir. 1999).

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Seide had to show that he left Haiti for the United States because

he faced past persecution or had a well-founded fear of future

persecution as a result of his political beliefs.6 See id. Still,

if he demonstrated only past persecution and the government was

able to rebut the presumption of a well-founded fear of future

persecution, he would not have been entitled to asylum. See id.

The IJ found that Seide was ineligible for asylum because

he established only past persecution and the government succeeded

in rebutting the presumption of a well-founded fear of future

persecution, and he did not prove that his departure from Haiti was

caused by the past persecution. Because the evidence does not

"compel" that we reach a conclusion different from that of the IJ,

we affirm. See Settenda, 377 F.3d at 93.

Were it clear that Seide was the intended target of the

August 2001 automobile attack and that he was targeted because of

his political beliefs, this might be a more compelling case. But,

we cannot say that the evidence necessitated the conclusion that

Seide was, or that he reasonably could have viewed himself as, the

intended target of a politically-motivated attack in August 2001,

given that he could not identify his attackers, did not testify
7Although we view the delay between the incidents in 2000 and

Seide’s departure in August 2001 as significant to the asylum

determination, our decision is informed by a number of other

factors as well. In particular, we find it noteworthy that Seide's

wife currently lives peacefully in Port-au-Prince; in all of

Seide's allegedly violent encounters with members of the Lavalas

Party, he was never injured to the point where he required medical

attention; and he used another person's passport to try to enter

the United States rather using his own passport to legally gain

access to St. Martin or the Dominican Republic (which supports the

IJ's conclusion that his seeking to enter the United States was "a

matter of choice and not necessity"). Moreover, if Seide truly

feared that supporters of the Lavalas Party were out to harm him

after the July 2000 home invasion, he probably would not have

immediately applied to the authorities for a replacement passport.

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that his attackers yelled political epithets at him, and at the

time of the attack, was driving a borrowed vehicle. Moreover, the

November 2000 incident, the most recent of the other incidents,

occurred nine months before Seide left Haiti. And, during that

period, Seide lived openly with his wife in Port-au-Prince and

continued to travel between and engage in political activities in

Port-au-Prince and Cavaillon. Thus, there is sufficient evidence

to support the IJ's finding that Seide was not the intended target

of a politically-motivated attack in August 2001; the incidents of

May, July, and November 2000 cannot fairly be viewed as the cause

of his August 2001 departure; and, despite those incidents, he did

not have a well-founded fear of future persecution on account of

his political beliefs in August 2001.7

B. Withholding of Removal

Because Seide failed to demonstrate his eligibility for

asylum, he is necessarily ineligible for withholding of removal.
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See Mediouni v. INS, 314 F.3d 24, 27 (1st Cir. 2002) ("Because the

standard for withholding . . . is more stringent than that for

asylum, a petitioner unable to satisfy the asylum standard fails,

a fortiori, to satisfy the former." (internal quotation marks

omitted)). For this reason, the denial of his request for

withholding of removal is affirmed.

C. Convention Against Torture

An applicant seeking relief under the CAT must "establish

that it is more likely than not that he . . . would be tortured if

removed to the proposed country of removal." 8 C.F.R. §

208.16(c)(2). For an act to constitute torture, it must be, inter

alia, inflicted "by or at the instigation of or with the consent or

acquiescence of a public official." Elien v. Ashcroft, 364 F.3d

392, 398 (1st Cir. 2004); see 8 C.F.R. § 208.18(a)(1).

There is sufficient support for the IJ's conclusion that

Seide failed to establish that "it is more likely than not" that he

will be tortured if returned to Haiti. As we have said, the

evidence indicates that from January to August 2001, Seide lived

openly in Port-au-Prince and traveled between and engaged in

political activities in Port-au-Prince and Cavaillon. It also

supports the IJ's finding that, during this time, Seide was not

specifically targeted by any individuals, much less individuals

associated with the government. The denial of Seide's request for

relief under the CAT is affirmed.
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Affirmed.